Do we need the Charter to protect our rights?The Charlottetown Guardian, 27 November 2012

Canadians love their bill of rights. In fact, the Charter of Rights and Freedoms is among the most popular of its kind in the world, and according to a paper in last June’s New York University Law Review, it is also one of the most influential. Several jurisdictions, such as Israel, South Africa, and Hong Kong, have based their own versions of enumerated rights on the Canadian system. Scholars David S. Law and Mila Versteeg assess this development as “a growing generic component in global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions.” Their research also confirms that the constitutional model of the United States “is increasingly far from the global mainstream.” Despite these findings, it remains to be proven that a bill of rights, in concert with a strong judiciary that can veto legislation, is best for Canada.

I am not arguing against individual rights, per se. While some schools of thought, such as utilitarianism and Marxism, do reject this concept, I fully support its widespread acceptance as an organizing principle of law and morality. And though they disagree about which ones are important, both liberals and conservatives care about rights, indicating a shared foundation for discussing contentious issues. Yet a mere defence of rights is not an argument for the charter because the charter is but one mechanism for protecting rights, not the actual rights themselves. As Jeremy Waldron explains in his seminal essay ‘The Core of the Case Against Judicial Review’, the debate is not about whether rights are real or important, but whether a constitutional charter is the best way to protect rights and to arbitrate disagreements about them. There are some compelling reasons to believe that this is not the case.

First, the authority of justices in ethical debate is dubious; they are not trained as moral philosophers, and even if they were, how would this justify their veto power? Remember that judges cannot be removed from office for making bad judgments and that their rulings are effectively unchallengeable, save for invoking the Notwithstanding Clause, which is only a temporary reprieve that carries substantial taboo for legislators. Meanwhile, parliamentarians are at least subject to the will of the electorate in many ways, such as advocacy and campaigning, lobbying, and the eventual threat of failing to hold their seat in a future election. There are many inadequacies in our parliamentary politics, namely the centrality of party discipline and an unrepresentative electoralsystem, but these can be addressed by improving democratic institutions themselves. Forfeiting the right to self-govern on critical moral and social issues, in the form of empowering the Supreme Court, is highly unnecessary.

Second, our attitude toward the charter seems to suggest that there areultimate answers to rights disagreements that can be resolved definitively by law. This is false, as exemplified by the very real debates that involve conflicting perceptions of rights. On all kinds of issues, both sides appeal to individual rights that are guaranteed by the charter, leaving the court to offer a conclusive interpretation, often with the intended goal of settling a controversial subject for good. But the idea of closing the book on any debate reeks of societal insecurity — a fear of re-examining previous decisions to determine that a mistake may have been made. And unlike the losing side in a high court ruling, the losers of a particular legislative ‘round’ have ample opportunity to advance their cause in the future.

Third, the common belief that judges are more progressive, better attuned to the needs of minorities, more reflective of diversity, and able to make decisions free of ideology or prejudice is mistaken. Despite the image of the Supreme Court as a bastion of political liberalism, there is reason for people on both sides of the spectrum to oppose the charter. As the leftist scholar Andrew Petter has argued in his book, The Politics of the Charter, plenty of progressive causes have been compromised by the court’s haphazard interpretations. For example, the court struck down in 2005 a Quebec law restricting private health care access, an unmistakably progressive objective. And minorities, though nominally protected by the charter, have actually had a mixed record. Many First Nations groups opposed its adoption in 1982 on theground that their pursuits would be curtailed by the judiciary, and some Supreme Court cases have indeed compromised aboriginal interests. As for bias, it is clear that judges are mere primates like the rest of us, with prejudices of their own. The difference is that we have to live with their biases permanently.

None of this means that all checks on the House of Commons are bad. Butthere are other ways of curbing potential abuses of rights without sacrificing the democratic process in policy debates. An effective upper house to credibly review legislation and a bipartisan rights committee in the House of Commons, which could deem laws inconsistent with declared right, might have the intended effect. Ultimately, the key factor in protecting individual rights is not whether they are inscribed in stone with constitutional force, but whether the people and their representatives actually value them. Otherwise, rights have no moral force, and rulings no legitimacy.